Shumack v Secretary Dept Health and Ageing

[2005] HCATrans 905

[2005] HCATrans 905

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  No C10 of 2005

B e t w e e n -

PETER JAMES SHUMACK

Applicant

and

SECRETARY DEPT OF HEALTH AND AGEING

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 9 NOVEMBER 2005, AT 9.40 AM

Copyright in the High Court of Australia

GUMMOW J:   The applicant seeks special leave to appeal from a decision of the Full Court of the Federal Court (Moore, Tamberlin and Emmett JJ) dismissing an appeal from a decision of Madgwick J, who dismissed a purported appeal from a decision of the Administrative Appeals Tribunal.

The applicant had been unable to satisfy the Tribunal that it had jurisdiction to entertain the applicant’s application for review, and it therefore made a decision under s 42A of the Administrative Appeals Tribunal Act 1975 (Cth) (“the Act”) to dismiss the application as made in respect of a non-reviewable decision. The applicant’s claim sought review of a decision to refuse to disclose information concerning the gender ratio of applicants for a position within the National Health and Medical Research Council.

Madgwick J and the Full Court held that the power conferred by s 42A had been enlivened and the Tribunal had not erred in exercising that power to dismiss the application. The powers of review by the Tribunal are not enlivened unless there is particular statutory provision made for review of the decision in question. There was no such provision for this case. In the Full Court, Emmett J added that the purported appeal to the Federal Court under s 44 of the Act may also have been incompetent as no question of law was raised by the appeal.

We have considered the applicant’s written case and the reasons of the Full Court and of Madgwick J.  No error is apparent in the reasoning of the Full Court and an appeal to this Court would have no prospect of success.  Accordingly, special leave to appeal is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish the disposition signed by Kirby J and myself.

AT 9.42 AM THE MATTER WAS CONCLUDED